University of Kerala v. Rejiya C.S. and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 22ND DAY OF JUNE 2017/1ST ASHADHA, 1939 WA.No. 1037 of 2017 () IN WP(C).35754/2015 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) 35754/2015 of HIGH COURT OF KERALA DATED 13-12-2016 APPELLANT/2ND RESPONDENT: -------------------------------------------------- UNIVERSITY OF KERALA REPRESENTED BY ITS REGISTRAR, PALAYAM, THIRUVANANTHAPURAM-695 034. BY ADV. SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA RESPONDENTS/PETITIONER AND RESPONDENTS 1 AND 3 TO 5: --------------------------------------------------------------------------------------------- 1. REJIYA C S ASSISTANT PROFESSOR (BIO CHEMISTRY) SREE AYYAPPA COLLEGE, ERAMALIKKARA - 689 121. 2. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM-688 001. 4. THE MANAGER TRAVANCORE DEVASWOM BOARD COLLEGES, (SECRETARY), TRAVANCORE DEVASWOM BOARD, DEVASWOM BOARD BUILDING, THIRUVANANTHAPURAM-695 001. 5. THE PRINCIPAL SREE AYYAPPA COLLEGE, ERAMALLIKKARA, CHENGANNUR-689 121. R4-R5 BY ADV. SRI.T.K.AJITH KUMAR, SC, TDB R1 BY ADV. SRI.P.C.SASIDHARAN R2 & 3 BY SR.GOVERNMENT PLEADER SRI.A.J.VARGHESE THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.No. 1037 of 2017 () IN WP(C).35754/2015 ## APPENDIX ## PETITIONERS ANNEXURES : NIL ## RESPONDENTS' ANNEXURES : ANNEXURE - R1(a) : TRUE COPY OF THE PRELIMINARY MINUTES OF THE 26TH MEETING OF THE SYNDICATE HELD ON 18/3/2017 /TRUE COPY/ P.A TO JUDGE AV ## **K.SURENDRA MOHAN & MARY JOSEPH, JJ. --------------------------------------------W.A.No.1037 of 2017 ---------------------------------------------Dated this the 22[nd] day of June, 2017** ## **J U D G M E N T** ## Surendra Mohan, J. The second respondent University in W.P.(C).No.35754 of 2015 is before us challenging the judgment dated 13.12.2016 of the learned Single Judge, allowing the writ petition. As per the judgment appealed against, the learned Single Judge has accepted the contention of the University that the workload assessment done by it justified the sanctioning of three posts of Assistant Professors in the Department of Biochemistry in the Sree Ayyappa College, Eramallikkara and that, it was not open to the Government to disregard the workload assessment done by the University and to come to a contrary conclusion. Accordingly, the appointment of the first respondent has been directed to be approved forthwith. It is the said direction that is under challenge at the instance of the University. 2. The short facts of the case are the following : The first respondent is the holder of a Ph.D Degree in Biochemistry, in addition to an M.Phil. Pursuant to a notification issued by the fourth respondent, she had applied for appointment to the post of Assistant Professor in Biochemistry, under the fifth respondent. She was called for an interview by the Selection Committee and W.A.No.1037 of 2017 2 thereafter, was appointed as per Ext.P1 order dated 12.07.2012. However, her appointment has not been approved. 3. The appointment of the first respondent had been made, after the sanction of three posts of Assistant Professors to the College, by the University. The posts were sanctioned by the University after the conduct of a workload study in the Biochemistry Department of the College. As per Ext.P2 proceedings dated 22.08.2012, the number of teaching hours in the Department was assessed to be 45 hours. Consequently, it was found that three posts could be sanctioned. However, the fifth respondent has appointed only two teachers. The appointment of the first person has been approved. But when the first respondent's appointment was sent for approval, the Government by Ext.P6 order dated 28.03.2014 found that, the workload assessment in the Biochemistry Department was only 13 hours and therefore, there was scope for sanctioning only one post of Assistant Professor in the Department. Though the University sought for a review of the said stand of the Government, in Ext.P8 order dated 20.10.2015, the Government reiterated their stand in Ext.P6. Pursuant to Ext.P8, the fourth respondent issued Ext.P9 order terminating the services of the first respondent finding that, there was no sanctioned post to which, she could have been appointed. The writ petition was filed by the first respondent, challenging the said proceedings of the W.A.No.1037 of 2017 3 respondents. 4. According to the first respondent, she was selected and appointed after a due process of selection, pursuant to a notification issued by the fourth respondent. She is a person who is fully qualified as per the UGC Regulations, 2010. She is the holder of a Ph.D, M.Phil as well as NET. The University had conducted a work study, which assessed 45 teaching hours in the subject of Biochemistry. Though three Assistant Professors could have been appointed, only two were appointed. The first appointment has already been approved. The objection has been raised only in respect of the appointment of the first respondent. Therefore, it was contended that the objections are unsustainable. The first respondent also questioned the action of the Government in conducting a work assessment, rejecting the assessment made by the University. 5. The writ petition was contested by the respondents. The University filed a counter affidavit supporting the averments in the writ petition. According to the University, the work assessment conducted by it was correct and there were actually 45 teaching hours with respect to the subject, Biochemistry. According to the counter affidavit filed by the Government, out of the 23 hours in the concerned subject, only 13 hours of workload was available for theory subjects, the rest being utilised for practicals. It was W.A.No.1037 of 2017 4 contended that 16 teaching hours were required for sanctioning of an additional post. The third respondent, Deputy Director of Collegiate Education contended that, B.Sc.Micro Biology Course was a vocational course and therefore, only a workload of 24 hours could be accepted. Consequently, only one post of Assistant Professor could be sanctioned. The contentions in the counter affidavits were refuted by the first respondent who filed reply affidavit. According to the first respondent, since the work assessment conducted by the University found that 45 teaching hours were necessary in the subject, the stand of respondents 2 and 3 were unsustainable. 6. The learned Single Judge considered the respective contentions, found that since the definite stand of the University was that as per the work assessment conducted by it, 45 teaching hours were necessary for the subject, sanctioning of three posts was necessary in the Department of Biochemistry. The said finding could not be disregarded by the Government to come to a contrary conclusion. The decisions of this Court in _**Cherian Mathew v. Principal S.B. College, Changanasherry [1998 (2) KLT 144]**_ and _**Shalini Rachel v. Manager, Christian College [2007 (3) KLT 355]**_ were relied upon to find that the work assessment done by the University would prevail. Therefore, the University has been directed to forthwith approve the appointment of the petitioner. 7. According to the learned counsel for the appellant W.A.No.1037 of 2017 5 University, as per the Full Bench decision of this Court in _**Radhakrishnan Pillai D. (Dr.) v. Travancore Devaswom Board and Others [2016 (2) KHC 119 = 2016 (2) KLT 245]**_ , the UGC Regulations, 2010 having been adopted by the State, it was incumbent on the University as well as the Colleges to have made appointments in compliance with the provisions thereof. It has further been declared that any deviation from the terms of the Regulations would be illegal. Since the Selection Committee that conducted the selection of the first respondent was not constituted in accordance with the UGC Regulations, 2010, implementation of the direction of the learned Single Judge would amount to violation of the direction contained in the Full Bench decision. It is stated that, this appeal has been filed in view of the above difficulty. 8. According to Adv.Sri.P.C.Sasidharan, who appears for the first respondent, the University had no such contention before the learned Single Judge. In fact, the University had taken a stand supporting the first respondent, justifying the work assessment done by it. Therefore, it is contended that the University cannot now turn around and question the findings of the learned Single Judge. According to the learned counsel, no finding has been made by the learned Single Judge, to the prejudice of the University. The University being not a person aggrieved by the direction contained in the judgment, the appeal itself is not maintainable, it is W.A.No.1037 of 2017 6 contended. Our attention is also drawn to Ext.R1(a), the resolution of the Syndicate of the University, which has been produced along with the counter affidavit filed by the first respondent to C.M.Application No.613 of 2017, the petition filed by the University for condonation of the delay that had occurred in filing this appeal. As per Ext.R1(a), the Syndicate had decided to implement the direction of the learned Single Judge in the judgment appealed against, it is pointed out. The said resolution has been adopted on 04.03.2017, after the judgment of the learned Single Judge on 13.12.2016. The Syndicate having decided to implement the judgment of the learned Single Judge, it is contended that the stand of the Registrar in filing the present appeal is a violation of the resolution. We have heard Adv.Sri.T.K.Ajith Kumar who appears for respondents 4 and 5 as well as the learned Government Pleader. 9. As already noticed above, the first respondent was appointed as an Assistant Professor as per Ext.P1 on 12.07.2012. It is not in dispute that the appointment was on the basis of the selection conducted by a Selection Committee constituted for such purpose. The post itself was sanctioned on the basis of a work assessment conducted by the University, which has found that 45 teaching hours were necessary in the subject Biochemistry in the College of the fifth respondent. Though three posts were sanctioned by the University as per Ext.P2, only two appointments were made. W.A.No.1037 of 2017 7 It is also not in dispute that, the first appointment was approved and it is only with respect to the appointment of the first respondent herein that an objection had been raised. The objection that was raised, was on the basis of a work assessment conducted by the Government through the Deputy Director of Collegiate Education. The learned Single Judge has found, placing reliance on the decisions in _**1998 (2) KLT 144**_ and _**2007 (3) KLT 355**_ (supra), that the said assessment conducted by the Government was unjustified. In view of the above, the stand adopted by the University has been accepted by the learned Single Judge and a direction to approve the appointment of the first respondent has been issued. 10. In the present appeal, the University has taken a diametrically opposite stand and is challenging the judgment of the learned Single Judge in directing that the appointment of the first respondent shall be approved. It is worth noticing that, in the counter affidavit filed in the writ petition, there was no contention regarding the violation of UGC Regulations. In fact, the stand taken by the University is that, the appointment was in order. Paragraph 9 of the counter affidavit reads as follows: _“9. As per the workload calculated by the University there are 45 hours in the Department and 3 teachers are permissible and the petitioner was appointed as the 2[nd] teacher in the department of Biochemistry. The Syndicate_ W.A.No.1037 of 2017 8 _of the University of Kerala resolved to approve the initial appointment subject to the concurrence of the Government. The onus of disbursement of salary of teachers approved by the University is on the Government.”_ 11. In view of the above stand, the finding of the learned Single Judge is perfectly justified. The State has not filed any appeal against the said judgment. 12. The contention urged before us is that, in view of the judgment of the Full Bench of this Court in _**2016 (2) KHC 119**_ (supra), if approval is granted to the appointment of the first respondent, that would be in violation of the dictum in the said decision. Though we have tried to elicit from the counsel the reason why the University has no complaint against the approval granted to the appointment of the other person who was appointed, his answer is that, the same was done before the date of the Full Bench decision. We notice that the appointment of the first respondent was on 12.07.2012, whereas, the judgment of the Full Bench is of the year 2016. Therefore, for the very same reason that is put forward for justifying the approval granted to the first person who was appointed, the first respondent is also entitled to get approval to her appointment. We also notice from Annexure R1(a) that the Syndicate Meeting of the University held on 04.03.2017 has resolved to approve the appointment of the first respondent. We W.A.No.1037 of 2017 9 find that the stand adopted in this appeal is inconsistent with the resolution referred to above and that, this appeal has been filed after the date of the said resolution. We find that the appellant University has been shifting its stand in this matter by first supporting the contentions of the writ petition and thereafter challenging the judgment, in spite of the fact that the Syndicate has resolved to approve her appointment. We are not satisfied that the contention urged has any merit. In view of the above, this appeal fails and the same is accordingly, dismissed. Sd/- **K.SURENDRA MOHAN JUDGE** **Sd/MARY JOSEPH JUDGE** AV //True copy// P.S. To Judge